English Legal System - Introduction to the English Legal System (Part 1)

What is a constitution?

A constitution has been defined as a series of legal and non legal rules that define how a country is governed. It identifies:

The institutions of government

The nature and distribution of powers within those institutions

The forms and procedure through which such powers should be exercised

The relationship between the institutions of government and the individual citizen (This is often expressed in a ‘Bill of Rights’)

The UK Constitution

Rivlin poses a wonderful image of an invisible palace that has been built up and added to over centuries and at the centre of the palace is the throne room which is the British Constitution.

The problem is knowing what makes up the ‘invisible palace and throne room’ , unlike other countries where it is possible to see the constitution of that country in written format, the UK does not have that ability, there is no one document that can be called the UK constitution.

The academic Neil Parpworth is keen to highlight that although there is no one document that contains the British Constitution it would be erroneous” to say that the rules of the British Constitution are unwritten as there are several written sources that can be referred to find the principles of the British Constitution, for example, the Magna Carta and Acts of Parliament.

Principles of the British Constitution

The three (3) basic principles underlying the British constitution are; the separation of powers, the supremacy of Parliament and the rule of law

Separation of Powers

This is a fundamental principle of the British constitution. The separation of powers principle was developed by French philosopher Montesquieu in the 18th century in L’Esprit des Lois (The Spirit of the Laws), although in the preface of the book he appealed too the readers to ‘approve or condemn the book as a whole and not just a few sentences.’

Sadly his eminence in the place of the study of constitutional law has been as a result of just a small section of his writings.

Montesquieu viewed the separation of the powers, in a chapter entitled ‘On the Constitution of England’ thus:

When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.

Nor is there liberty if the power of judging is not separate form legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.

All would be lost if the same mane of the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

According to Montesquieu’s principle all state powers may be divided into three (3) types – executive, legislative and judicial

Executive – Government and its servants (police, civil servants, etc.)

Legislative – Parliament

Judicial – the Judges

The basis of this principle was the theory that these of power should not be concentrated in the hands of one group or individual but should each be exercised by different body

See also textbooks.
Related Posts Plugin for WordPress, Blogger...
Need Law Introduction ... click HERE
Private Policy About Us Contact Us Content References

LAW (LLB) NOTES is intended merely as an informational and educational resource and is not intended to offer legal advice, nor does it offer legal advice. The exchange of information, by electronic mail or otherwise, relating in any way to LAW (LLB) NOTES is not intended to create an attorney-client relationship, nor does it create an attorney-client relationship.